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Philbin v. Civil Service Com.

OPINION FILED NOVEMBER 29, 1978.

MICHAEL PHILBIN, PLAINTIFF-APPELLANT,

v.

THE CIVIL SERVICE COMMISSION OF COOK COUNTY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding.

MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

The plaintiff, Michael Philbin, appeals from an order of the Circuit Court of Cook County, which affirmed the decision of the Civil Service Commission, removing him from his position as a Highway Engineer IV with the Cook County Department of Highways. The charges filed by the Cook County acting superintendent of highways alleged that Philbin failed to provide adequate and proper supervision of personnel under his jurisdiction, failed to institute sufficient standard practices and procedures to prevent employees under his direction and control from violating department guidelines and rules, and failed to delegate clear lines of supervisory authority for road crew personnel under his jurisdiction.

On December 16, 1976, a hearing was held before the Cook County Civil Service Commission. At the hearing, the charge concerning Philbin's failure to delegate clear lines of supervisory authority for road crew personnel was withdrawn. On December 20, 1976, over the objection of Philbin, the commission granted a motion to reopen the case to present additional evidence. Further evidence was heard on December 30, 1976. On February 24, 1977, the Civil Service Commission made the following findings:

"1. That the respondent failed to provide adequate and proper supervision of personnel under his jurisdiction.

2. That the respondent failed to institute sufficient practices and procedures to prevent employees under his direction and control from violating department guidelines and rules."

The commission ordered that Philbin be removed from his position as Highway Engineer IV, Cook County Department of Highways, and separated from the classified service of Cook County.

On April 12, 1977, Philbin filed a petition for a writ of certiorari with the Circuit Court of Cook County requesting review of the commission's decision. Philbin alleged that the decision was against the manifest weight of the evidence. The writ of certiorari was issued on July 20, 1977. On December 2, 1977, the trial court affirmed the decision of the commission in all respects. The court found that the decision was not without substantial foundation in evidence, was not arbitrary and was not an abuse of discretion.

On appeal Philbin raises two issues for review:

1. Whether the decision of the commission was supported by the manifest weight of the evidence.

2. Whether the discharge was an excessive penalty.

At the hearing before the commission in December 1976, Philbin and the commission stipulated that the rules covering personnel of the Highway Department road crews prohibited stopping for personal shopping and coffee breaks during hours of employment. Testimony taken at the hearing, together with interviews which were stipulated into evidence, indicated that numerous departmental employees did take breaks during working hours.

The commission's key witnesses were two investigators for the Better Government Association of Chicago (BGA), William Recktenwald and Robert Weissbourd. Recktenwald testified that he observed men from the Highway Department on two occasions. On June 30, 1976, he followed a Cook County truck when it left the yard at 7:20 a.m. and shortly thereafter observed it pull into the parking lot of the Northfield Village Garage. The men in the truck then walked to the C.D. Snack Shop where they stayed until 8:12 a.m. Recktenwald stated that there were three men in the crew, but the only one that he saw working until 11:55 a.m., when he discontinued surveillance, was a man who drove a tractor and cut grass. The other men drove up and down a frontage road of the expressway at a low rate of speed and stopped at various places.

On July 27, 1976, he observed another truck with a three-man crew leave the yard at 8:30 a.m. The next time he saw the crew was at 11:30 a.m. when one of the men drove a tractor into the Northfield Village parking lot and then walked to the C.D. Snack Shop. At noontime the truck with the two other men pulled into the parking lot and both men went to a grocery store and shopped for 20 minutes before meeting with the driver of the tractor. At 12:55 p.m. all three got into the truck and drove at low speed along a number of roads before stopping at a snack shop. Two of the men went inside and remained there for about 20 minutes. Upon returning to the truck, they drove to a small shopping center where they spent about 25 minutes. They then stopped to examine a car which was for sale and then pulled into the Mandarin House Restaurant parking lot, where they stayed for 15 minutes. After leaving the restaurant, they traveled on roads not maintained by Cook County. Recktenwald stated that he did not observe the men doing any work.

The second investigator, Weissbourd, testified that he observed a truck leave the yards on July 22, 1976, and drive to a parking lot near Robert's Restaurant, where at least one man got out. The truck remained there about 5 minutes and then proceeded to Mr. B's Restaurant, where two men went in and one remained in the truck. The two men stayed in the restaurant for 15 or 20 minutes before dumping and leveling a load of gravel, which took about 40 minutes. They returned to the yard for another load of gravel and drove circuitously at low rates of speed before going to lunch. After lunch they ...


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